P. v. Mendoza

Filed 10/19/07 P. v. Mendoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Mendoza.

Janet Gray, under appointment by the Court of Appeal, for Defendant and Appellant Henry Rodriguez Santana.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Garcia.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendants Salvador Mendoza, Henry Rodriguez Santana, and Francisco Garcia were convicted of the first degree murder of Roberto Ramirez with the additional special circumstance findings that the murder was committed while in the commission of a kidnapping and torture. The defendants were also convicted of kidnapping, torture, and conspiracy to murder. Defendant Mendoza was convicted of the unlawful possession of a firearm. They appeal, raising numerous issues.

FACTS

At approximately 6:30 p.m. on October 1, 2002, Isabel Valdes, a farm laborer living at a labor camp with about a dozen other people, observed a group of five men enter the camp carrying a total of two handguns and a rifle. Those present in the camp were moved outside and ordered face down on the ground. They were told they would be killed if they did not get down on the ground. The group asked for Roberto and Julian. Roberto Ramirez (the victim herein) said here I am. Two men took the victim away. During the encounter two other people were hit across the head with a handgun. The entire incident took about 10 minutes. Valdes could not describe the men. Valdes testified that the men left in a four-door green vehicle. Valdes recognized exhibit 103 (a rifle seized from Eulalio Mendoza, a.k.a. Pelon) as looking like one of the weapons he saw that evening. The people at the camp did not call the police because they were afraid.

Scott Rufer, an abuser of drugs, rented a house in Merced. His home was a place where various people would come to use drugs. David Medina (David) slept on the couch in the house and his brother, Ramon Medina (Ramon), was an occasional overnight guest.

On October 1, 2002, at 8 or 9 p.m., David and Rufer were watching television in Rufers house when a car pulled up in the driveway. David walked to the front door when the car arrived. Rufer testified that five people got out of the car and one of them had a pillowcase over his head. The other four men escorted the victim to one of the back bedrooms.

Rufer testified that, when the group entered his home, David spoke to them in Spanish and then told Rufer to sit on the couch, not to move, not to look, and not to breathe. David was armed and unplugged all of the telephones. Ramon arrived after the group of men arrived. Ramon was armed with a shotgun or rifle.

The group stayed in the back room approximately 20 to 25 minutes. The men came out of the back room occasionally during this time. David told Rufer that the victim was a snitch.

An old gray four-door car pulled up and the men left with the victim. Rufer and David remained at the house.

Rufer had no idea until months later of what happened to the victim. Rufer identified Eulalio Mendoza (a.k.a. Pelon^[1]) as one of the four men who arrived with the victim. Pelon was a friend of the Medina brothers (David and Ramon). Rufer identified Garcia from a photo lineup on February 2003 as one of the men who was in the group that arrived with the victim. Rufer picked out Santana on the day he testified as one of the people in the group of men who accompanied the victim into Rufers house. On cross-examination, Rufer said he saw Santana that evening but he was not positive if Santana was with the group. Rufer recognized Mendoza but was not sure if he was at his house with the group of men.

David was originally charged with murder. He entered a plea to false imprisonment and served six months in jail. He testified for the prosecution. David was living with Rufer in October of 2002. On October 1, 2002, he saw car lights. Three men walked into the house. One of the men had his head covered with a shirt or some other material. The other two men were armed. David did not know what was happening. David was told to stand by the door and not let anyone in the house. He did as he was told. The men went into the bedroom and remained there for 20 to 30 minutes. Davids brother Ramon was there. The men came out of the room, a car pulled up, and the group got in the car and left. David did not know if Ramon ever went into the room where the men were with the victim. David recognized Garcia as one of the men who was with the victim. In addition, he testified that Pelon was the other man who accompanied the victim into the house.

Ramon was also charged with murder but pleaded guilty to false imprisonment and kidnapping. He received a jail term for his convictions. Ramon testified that he was staying at Rufers house in October of 2002. Pelon was at the house earlier in the day on October 1, 2002, acting weird and nervous. Later in the day Pelon, Garcia, Mendoza, and Santana arrived at the house in a gray car (pictured in Peoples exhibit 15). They arrived with the victim. The victim was bleeding.

Ramon testified that the four men escorted the victim to the back room. They all had weapons, including a rifle and handguns. Santana and Mendoza left. Pelon came out and demanded that Ramon go in the back room. He complied. Ramon saw Pelon kicking the victim in the stomach, ribs, and back. Garcia pistol-whipped the victim on the forehead. Garcia asked the victim questions, including questions about Queenie and asked him where certain people were. Pelon and Garcia yelled at the victim. The victim was crying and hurting. He had tears and blood coming down his face. The victim asked them to quit.

Pelon went to the kitchen while Ramon and Garcia remained in the room with the victim. Ramon was sitting in a chair holding the rifle that Pelon handed to him. Ramon held the gun because Pelon demanded that he hold it.^[2] Pelon had a handgun in his other hand. Pelon, Garcia, and the victim were in the back room between 45 minutes to an hour. Ramon testified that he was only in the room for 25 minutes. The victim was curled up on the bed.

The same car that was used to bring the victim to the house was used to take the victim away. The victim was led out of the house with his face covered with a shirt. Ramon testified that the car belonged to Mendoza. Pelon told those remaining in the house to clean up. They did.

On cross-examination by Santanas attorney, Ramon was asked if he knew Sylvia Brown. He said he had smoked dope with her. He was asked if he had told Sylvia Brown that he had set up Santana. Ramon denied saying that to Sylvia Brown.

Maria Bustos (a.k.a. Lupe) lived in a room with her boyfriend at Rufers home. On October 1, 2002, Rufer, Ramon, David, Pelon, and Bustos were present at the home. According to Bustos, Pelon seemed desperate, as if he was waiting for something. Four men arrived in a four-door car. The men pulled a person out of the car with his eyes covered by clothing. Pelon and Garcia took the victim into the house. The other two men remained outside and left. Garcia had a gun and was holding on to the victim. Ramon had a gun.

Bustos was told to go outside. She did. The men remained in the house for 30 to 60 minutes. The victim was then led outside by Garcia, David and Ramon. Pelon remained inside and called Bustos inside. Once inside Pelon told Bustos to clean up the blood. When the victim was brought inside he was wearing sandals and socks. When he left he was only wearing socks. Ramon kept the victims sandals.

Merced Irrigation District employees were spraying the canal banks on October 4, 2002, when they saw something floating in the water. They determined that the object was a human body and called law enforcement.

Deputy Sheriff Gerald Dover arrived at the scene. The body was removed from the water. The arms of a shirt had been wrapped around the victims neck and tied. Five expended shell casings were found on the canal bank. There were shoe impressions in the dirt.

Dr. James Wilkerson conducted an autopsy on the victim, Roberto Ramirez. A black shirt was tied around the victims neck. It appeared that the shirt had been worn as a hood. The victim had suffered six gunshot wounds. One wound began at the upper chest, another one to the chest, another to the lower chest, one through the arm, one to the left buttocks, and the final gunshot wound was to the upper left thigh. The wounds were excessive for the purpose of killing someone. The cause of death was multiple gunshot wounds.

In addition to the gunshot wounds, the victim had blunt force injuries to his face and groin. The victim had a laceration to the bridge of his nose and a cut above his left eye. He had bilateral injuries to his groin with the bruise on one side of the groin larger and more purple than the other side. These wounds were inflicted before the victim was shot. The bruises were large and characterized as severe. The doctor testified that it would take significant force to cause the bruising. It appeared from the size of the bruises that the victim was unaware that he was going to receive the blows to his groin. A groin injury is probably the most painful injury a man can receive. The victim suffered at least two blows to his groin.

The victim had alcohol and methamphetamine in his system when he died. Four expended bullets were removed from the victim during the autopsy.

On October 11, 2002 Oakland police officer Allen Miller found a car in an apartment building parking lot in a high crime area. The car was dusty and had been sitting there awhile. The car was returned to Merced County.

Mario Naranjo said he sold the car on May 9, 2002 to two people, Mendoza and his brother Fortino Mendoza. The payments were brought in each month. Sometimes the payments were made by defendant Mendoza, sometimes by Fortino.

The car was searched and checked for fingerprints. Blood was found in the car. Latent print analyst Richard Kinney processed the vehicle. He lifted 22 print cards. Mendozas fingerprints were on a can of Red Bull found in the car and a container of Prestone interior cleaner. Garcias prints were found on the inside passenger rear window as well as on a cognac bottle. The fingerprint analyst was only asked to compare the prints of four people (Garcia, Mendoza, Santana, and Pelon) to the prints taken from the car and its contents.

Eight stains inside the car were tested for blood and were positive. Two of the stains were then tested for a DNA profile. The profile of the blood stains matched the victims and would occur in one in 630 billion Hispanics. DNA on cigarette butts taken from the car matched Mendoza.

Isais Fierros knows the three defendants. Mendoza is Fierross cousin, he is related to Santana, and he knows Garcia. On October 5, 2002 Fierros went to the Atwater Police Department to report a matter he had telephoned about on October 3 and 4. He told the police that Garcia had tried to take his child and that Mendoza had called him and demanded that he provide him with $50,000. Fierros told the police that Mendoza said he had killed someone in Merced and needed the money to get out of town. Fierros laughed when Mendoza said he was going to kill him. Fierros said that when Mendoza called him the next day and repeated the demand, he took him more seriously. Fierros did not go to the police until they attempted to take his child.

Fierros left the police department after making his report. Later that day, Fierros called 911 because Mendoza was following him and he was afraid. Mendoza was taken into custody. Officers found a loaded firearm under the passenger seat of the car he had been driving.

Fierros talked to Mendoza at the direction of the police department. When Fierros asked Mendoza what he had done in Merced, Mendoza replied, Thats nothing. Fierros told Detective Dover that Garcia mentioned that they had killed someone. Fierros agreed to wear a wire for the police and talk to Garcia. Fierros asked Garcia if the guns had been disposed of. Garcia said they had thrown them away.

On cross-examination, Fierros began to change his story. He said that Mendoza wanted the money for Pelons bail. He testified that he made up stories for the police because he was concerned about his child and he wanted to get Garcia and Mendoza off the street. When he first called the police to tell them that someone had tried to take his child, the officer told him he was not a babysitter and he should make his report in person. Fierros was angry enough with Garcia to tell lies about him and to kill him. Fierros wanted Garcia arrested and off the streets. Fierros told police that Mendozas car might be found in Oakland, but Fierros did not drive the car there. Fierros testified that Garcia did not confess a murder to him, but perhaps he (Fierros) gave that impression to the police because he needed the police to get Garcia locked up. Fierros testified that Mendoza never asked him for money because of a murder. Fierros was angry with Mendoza and wanted him off the streets. Fierros said he was telling the truth now in court.

On redirect examination, Fierros starting repeating the version of events he told on cross-examination. He testified that Mendoza did call him and ask him for money but Mendoza did not say he was going to kill Fierros nor did Mendoza tell Fierros he had killed a man in Merced. Fierros made up a lot of things he told police with the purpose of getting Mendoza and Garcia off the streets.^[3]

Atwater police officer Aaron McKnight testified that he met Fierros in the lobby of the police station at 9:35 a.m. on October 5, 2002. Fierros had called the police department on October 3d, and October 4th. Fierros told Officer McKnight that Mendoza had called him and wanted $50,000 because he had killed a guy and he needed to flee. Fierros told McKnight that Mendoza said he would kill him if he did not come up with the money. Fierros was afraid of Mendoza and also afraid of Garcia because Garcia associated with Mendoza and Fierros thought Garcia was looking for him to do him harm.

Sergio Torres lived in Merced in October of 2002. He knew Garcia and Mendoza from Mexico and met Santana in the United States. Garcia called Torres before October 11, 2002, and asked him to come to his hotel and to bring beer and food. Torres went to the hotel room. Torres was accompanied by his girlfriend, and Garcias girlfriend was also present. Torres and Garcia drank beer and consumed methamphetamine. When the women went to the store, Garcia told Torres that he, Mendoza, Santana, and Pelon had kidnapped a man, took the man to a house in Merced, and then took the man outside Merced to a canal bank. Mendoza made the victim sit on the canal bank. Garcia told Torres that Mendoza shot the man first and Garcia shot him after Mendoza shot him. Garcia was not sure if he hit the man with his shot. After the victim was shot he fell into the water. Garcia told Torres that they used Mendozas car.

Garcia told Torres that when they were driving back from the canal they let Santana out of the car because he was scared and did not want to be with them anymore.

Torres testified that he has a methamphetamine problem and has been in trouble with the law. At the time he testified he had three cases pending. Torress attorney went to law enforcement and said Torres had information he would provide in exchange for a better disposition. Torres talked to law enforcement about what Garcia told him with the hope that he would get help with his own legal problems. He reached an agreement with the prosecution. Charges pending against him were reduced and he was also given help to move away.

On cross-examination Torres disclosed more details about his deals with the prosecution. He was arrested on May 25, 2001 with a pound of methamphetamine. He reached a plea agreement in April of 2002. He pled guilty to possession of methamphetamine with the agreement that he would receive no more than 16 months in prison. Between the time of his plea and before sentencing Torres was cooperating with law enforcement to bring them information in the hopes that his sentence would be less than 16 months. His case was continued in July and August. Torres kept asking for more time to gather information. He had not found any information to pass on to law enforcement in October of 2002.

On February 5, 2003, Torres finally came forward with the information he had received from Garcia in October of 2002. In May of 2003 Torres agreed to testify in Garcias case. In the interim, Torres was arrested in March of 2003 for possession of a handgun. He testified at Garcias preliminary hearing and was released from jail that day. His new felony charges were reduced to misdemeanors and he received a promise of financial assistance to relocate. He was arrested again in June and August of 2003 and during the current trial in June and July of 2004. He had five cases pending. His cases had been continued with the hope that he would get favorable treatment from the district attorneys office. Torres testified that he came forth with his story regarding Garcia in February of 2003 because Garcia and the other defendants were in jail and he felt safe.

On February 26, 2003 all three defendants were in custody and scheduled for a court appearance. They were transported in a van that had been outfitted with several recording devices. Garcia and Mendoza were placed in the van first. Santana joined them several minutes later.

A tape of the recording was played to the jurors. In the tape Mendoza asked Garcia what he knew and who was talking. Garcia said they are taking fingerprints of everyone who was in the car. Garcia told Mendoza that he told police that they are cousins and sometimes Mendoza would give him a ride to the store. Garcia also said that the police were asking if he knew Pelon and Santana. Mendoza suggested that they say that they do not know anything. Garcia said that is what he has already told them. Mendoza said they should get a lawyer for whomever they find the most fingerprints for. Garcia reported to Mendoza that Rudy and Queen (Fierros) were talking and that Santana is doing well with him [Fierros]. Garcia and Mendoza discussed guns. Garcia said the police got a gun from him and had the gun found in Mendozas possession. Garcia told Mendoza the police said they had proof who did it and Garcia asked to see the proof.

Garcia continued the conversation and asked why they should pay when they had not done anything. He accompanied this comment with laughter. Santana entered the van. Santana reported to the other two that the old man and Ms. Lupe are the ones who were saying everything. Garcia said its not the old man, it is Ms. Lupe, Santanas pal Rudy and Tupu (Torres).

Santana asked where Pelon was. Garcia and Mendoza responded they did not know. Santana suggested they call his lady to find him. Garcia said he already knew. Santana suggested that Pelon could tie those dummies. Garcia said they could not do anything now or they would dig their hole deeper.

The three discussed how cases would go if there was not any evidence. Mendoza asked what was up with Quini [Fierros nickname was Queenie]. Garcia said he did not know where he was. Santana said that Quini said he was not going to say anything. Santana said they saw Juan, you guys [Mendoza and Garcia], and Pelon. Garcia said he told them he would go there for crack. Occasionally throughout the conversations they indicated that they had not done anything.

The three then discovered the listening devices. Garcia said they did not do anything. Mendoza said they should look for the person who did that. Garcia said they have us here and the person who did it is out. Santana said they dont have any evidence but they are putting it in the paper so they can come and see who did it. Garcia said they arent going to find evidence because they werent the ones who did it.

When Ramon Medina testified, he was asked on cross-examination if he had told Sylvia Brown (Sylvia) that he had set up Santana. Ramon replied that he had not. Based on this cross-examination, the district attorneys office investigated calls made by Sylvias husband, John Brown (John). John was a cellmate of Santanas in jail. This investigation resulted in Sylvias testifying at trial.

John and Santana were housed in the same cell in the jail. John was allowed to leave jail for one week on a pass. He returned to jail on May 23, 2004 and continued to share a cell with Santana until his removal on June 22, 2004. Johns removal from Santanas cell occurred during the trial in this case.

Sylvia testified that when John was out of jail on a one week pass he told her that Santana wanted her to keep Ramon from testifying. Before the plan was put into action, Ramon had already testified. Santana changed his plan and wanted Sylvia to lie and say that Ramon had set Santana up. John and Sylvia were under the belief that they would be paid for doing this.

Sylvia told Santanas investigator that she saw Ramon, and Ramon told her that he had set up the three defendants. When Santanas defense counsel disclosed this information to the district attorney, the district attorney began an investigation.

Sylvia was interviewed by Detective Dover. In her first interview she lied and stuck to her original story that she had seen Ramon. In her second interview with Dover, he confronted her with the tapes of the conversations among Sylvia, John, and Santana in jail. Sylvia then said the story about Ramon was a lie. Sylvia agreed to testify for the prosecution in exchange for a two-year suspended sentence for conspiracy to commit perjury. Santana and John were the alleged coconspirators.

The tape of the telephone conversation among Sylvia, John, and Santana was played for the jury. The telephone call began between Sylvia and John. John told Sylvia that Ramon had already testified, so if Sylvia wanted to come forward and say that Ramon was lying that would be good. Sylvia asked questions of John, and John asked Sylvia if she wanted to talk to Santana. She said yes, and John summoned Santana to the telephone. Sylvia and Santana spoke in Spanish. Sylvia explained to Santana that she knew him from before and that she is Johns wife. Sylvia told Santana that if he needed her to go to court she would go. He said yes. Santana said he was there because of Ramon and La Bomba (Torres). Santana said, That their [sic] telling lies. Sylvia said whatever you need me to do, Ill do. Santana said that if Sylvia did us that favor, he would greatly appreciate it. Santana said he already told him of the appreciation that he was going to give her. Santana wanted Sylvias name and address so he could give it to his attorney. Sylvia told Santana that John could provide him all of her details. Santana told Sylvia that when his attorney talks to her she should tell him that the guy told pure lies and that is why he was hiding. Santana also asked Sylvia to look for other girls who know that they are liars to come and testify. Santana said he would get in agreement with Sylvias husband and he appreciated what Sylvia was doing.

Sylvia then spoke to John and told him to give Santana her name and address so he could send his lawyer over. She also said she would get other people to back him up.

The parties stipulated that the bullets recovered from the victim were fired from the same weapon. It was also stipulated that the weapon used to kill the victim was not the gun seized from Garcia when he was arrested, it was not the gun seized from Mendoza when he was arrested, nor was the murder weapon Pelons rifle. In addition, the ammunition seized from Santanas home on February 14, 2003, pursuant to a search of his house, was not associated with the death of the victim.

Garcia was arrested at a restaurant. Garcia struggled when he was arrested and had a gun in his waistband of his pants. Garcia got his hand on one of the officers service weapons during the struggle. The struggle was described as a life or death struggle, lasting three to four minutes and requiring five people to take Garcia into custody.

DISCUSSION

I. Admission of Garcias statement to Torres as a Declaration Against Interest

As previously set forth, Torres testified that Garcia summoned him to a hotel room. They had a conversation, and in that conversation Garcia told Torres about the murder. Garcia also directly implicated Mendoza and Santana.

Prior to trial, numerous hearings were held regarding the admissibility of Torress testimony in the joint trial of Garcia, Santana and Mendoza. The trial court read the May 20, 2003 preliminary hearing transcript of Torress testimony regarding the information he obtained from Garcia and also read the transcript of the taped interview between Torres and the district attorney that occurred on May 21, 2004.

At the preliminary hearing Torres testified that he had known Garcia for approximately 10 years, going back to when they both were residing in Mexico. In October, Garcia called him and asked him to bring him food. Torres brought Garcia food and had a conversation with him at a hotel in Atwater. Torres said that Garcia was drunk and very nervous. In addition, Torres and Garcia consumed drugs at the hotel. During the conversation, Garcia told him that he and three others had taken a man to a house on Merced Avenue, where a beating took place. Garcia stated that they left the house on Merced Avenue and took the victim outside of Merced. Garcia told Torres that he had shot the victim while the victim was in the water. Although Torres brought his girlfriend along to the hotel, she was not there when Garcia and Torres had their conversation about the murder.

The prosecutor made a taped statement of an interview of Torres on May 21, 2004. Torres stated that he had a conversation with Garcia at a motel in Atwater, two or three days after the murder. Torres went to the motel because Garcia called him and asked him to come over there. Garcia also asked him to bring something to eat. Garcia said he, Mendoza, Santana and Pelon had kidnapped the victim in Winton and took him over to a house in Merced. Garcia said they drove the victim to the house in Merced in Mendozas car. When they went in the house they all had weapons. They kept the victim in a room in the house. Garcia said he pointed his gun at the victim. Garcia said they took the victim to a canal. He saw Mendoza shoot the victim and he (Garcia) also fired his weapon. Garcia said that Santana was scared. When asked why Garcia gave him this information, Torres stated that he and Garcia talked a lot and Garcia was very worried and had to tell somebody.

In addition to the above facts elicited from Torres during the interview, Torres also said that Mendoza was the one with the problem with the victim and that Mendoza would tell Garcia what to do. From the questions and answers it is not clear if this evidence was obtained by Torres from Garcia, or if Torres learned of this information from other sources.

The trial court found the statement of Garcia was admissible as a declaration against interest, having met the requirements of trustworthiness and being particularly disserving to Garcias interest. Pursuant to the rationale of People v. Greenberger (1997) 58 Cal.App.4th 298, 340, the court found that the statement was admissible against all three defendants, even those portions of Garcias statement that implicated Mendoza and Santana.

Torres testified at trial that he lived in Merced in October of 2002. He knew Garcia and Mendoza from Mexico and met Santana in the United States. Garcia called Torres before October 11, 2002 and asked him to come to his hotel and to bring beer and food. Torres went to the hotel room. Torres was accompanied by his girlfriend, and Garcias girlfriend was also present. Torres and Garcia drank beer and consumed methamphetamine. When the women went to the store, Garcia told Torres that he, Mendoza, Santana, and Pelon had kidnapped a man, took the man to a house in Merced, and then took the man outside Merced to a canal bank. Mendoza made the victim sit on the canal bank. Garcia told Torres that Mendoza shot the man first and Garcia shot him after Mendoza shot him. Garcia was not sure if he hit the man with his shot. After the victim was shot he fell into the water. Garcia told Torres that they used Mendozas car.

On cross-examination, Torres testified that Garcia told him that when they were driving back from the canal they let Santana out of the car because he was scared and did not want to be with them anymore.

Mendoza argues that Garcias statement implicating him in the crimes was erroneously admitted. First, he argues the court should have redacted those portions of the statement that spread or shifted blame to Mendoza. He contends that almost all of Garcias statement consisted of an attempt to spread blame to others and mitigate his own culpability. Next, Mendoza asserts the court erred in finding the statement trustworthy. In particular he contends that Garcia was not bragging about his exploits but was laying the groundwork for his defense. He characterizes Garcias portrayal of his role as a bit player and argues that Garcia was merely preparing the groundwork to use Torres as a witness to corroborate that his role was a minor one. Finally, Mendoza contends the statement was unreliable for state law purposes.

Santana also challenges the admission of this evidence. He argues that the most glaring problem with the introduction of Garcias statement was that it included statements implicating Santana and Mendoza. Santana contends that these collateral assertions were not disserving against Garcias own interest and thus were not properly admitted as declarations against interest. Santana argues that the fact that Torres was an informant creates an inherent risk of untrustworthiness to his testimony. In addition, Santana argues the statements violated well-established Aranda-Bruton principles. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.)

It is not disputed by the parties that Garcias statement to Torres was admissible against Garcia. The question is whether it was admissible against Mendoza and Santana because it meets the requirements of the declaration against interest exception to the hearsay rule.

In People v. Greenberger, supra, 58 Cal.App.4th 298 defendants Greenberger, Mentzer, Marti, and Lowe were tried jointly for the murder of Radin. William Rider was an acquaintance of Mentzer, Marti and Lowe. Rider obtained statements separately from Lowe and Mentzer. Some of Lowes statements implicated Mentzer, and some of Mentzers statements implicated Marti and Lowe. (Id. at p. 325.) The trial court admitted the statements against all of the defendants, finding that they were admissible pursuant to Evidence Code section 1230 as declarations against interest. (Greenberger, supra, at p. 325.)

On appeal Mentzer, Marti and Lowe argued that the trial court erred in admitting these statements because it denied the nondeclarant the right of confrontation and also was contrary to the rules of Aranda-Bruton. The Greenberger court first held that the admission of a declaration against interest does not deny a nondeclarant defendant the right of confrontation guaranteed by the Constitution because the statements possessed sufficient indicia of reliability to make them trustworthy and to justify dispensing with confrontation at trial. (People v. Greenberger, supra, 58 Cal.App.4th at pp. 326-331.)

The Greenberger court went on to find that the admission of a declaration against interest against a nondeclarant defendant does not deny the nondeclarant defendant the right of confrontation even when the declarant is a codefendant in a joint trial. The Greenberger court found that Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission. (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)

Since declarations against interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible. This is not to say that all statements which incriminate the declarant and implicate the codefendant are admissible. Any such statement must satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness. This necessarily requires a fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; ... [Citation.] There is nothing in Bruton which prohibits introduction of such evidence. (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)

In People v. Fuentes (1998) 61 Cal.App.4th 956, we agreed with Greenberger and held that admission of extrajudicial statements of coparticipants pursuant to Evidence Code section 1230 does not deny a defendant his confrontation clause rights under the Sixth Amendment to the United States Constitution. This court distinguished the holding in Bruton because the statements here were properly admitted under state rules of evidence, a situation not present in Bruton. (Fuentes, supra, at p. 963.) In Bruton, the statement inculpating the defendant was clearly inadmissible against him under traditional rules of evidence. (Ibid.) Fuentes did not involve statements of defendants jointly tried; it involved extrajudicial statements of coparticipants.

In the interim period between Greenberger and the present case, there have been several new cases changing the rules regarding the admissibility of out-of-court statements, including statements of accomplices. In Lilly v. Virginia (1999) 527 U.S. 116 the court held that, accomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence. (Id. at p. 134.) Thus, such statements were not per se admissible as firmly rooted exceptions to the hearsay rule, but were admissible only if they met the second prong of the Ohio v. Roberts (1980) 448 U.S. 56 test; that the statements contained particularized guarantees of trustworthiness. (Lilly v. Virginia, supra. at pp. 134-135, fn. 5.)^[4]

Thus the admissibility of an out of court statement by an unavailable witness as substantive evidence against a criminal defendant turned on whether the statement contained particularized guarantees of trustworthiness such that adversarial testing would add little to its reliability. (People v. Cervantes (2004) 118 Cal.App.4th 162, 172.)

In Crawfordv. Washington (2004) 541 U.S. 36, the United States Supreme Court reshaped confrontation clause analysis, and the new focus after Crawford when admitting an out-of-court statement by an unavailable witness is whether the statement is testimonial or nontestimonial. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. (Id. at pp. 68-69.) Thus, out-of-court testimonial statements are admissible only when the witness is unavailable and there has been a prior opportunity for cross-examination of that witness. (People v. Cervantes, supra, 118 Cal.App.4th at p. 172.)

Crawford recognized that if the statement in issue is nontestimonial, the rules of evidence, including hearsay rules, apply. Crawford stated: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law. [Citation.] Thus, state courts may consider reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. [Citation.] [Citation.] (People v. Cervantes, supra, 118 Cal.App.4th at p. 173.)

As will be discussed in part II , the statement of Garcia to Torres was not a testimonial statement and thus the proscriptions of Crawford do not apply. Although the statements admitted in Greenberger and Fuentes appear to fall within the Crawford definition of testimonial statements and would not have been admitted post-Crawford, we see no reason to depart from the Greenberger and Fuentes holdings as they would apply to nontestimonial statements of a coparticipant admitted against a nondeclarant defendant at trial.

The appellate court in People v. Cervantes, supra, 118 Cal.App.4th 162 applied Greenberger in a post-Crawford case. Cervantes, Martinez and Morales were tried together and were convicted of first degree murder. The day of the murder Morales made a statement to his neighbor, Ojeda. He told her that he, Martinez and Cervantes questioned two males who they thought had made advances toward Moraless girlfriend. The males were held at gunpoint on their knees. Morales struck one of the males with his handgun and told Martinez to search the males for weapons. Martinez did not find a weapon but Morales said one of the males had a weapon. Morales shot one male because his friend was lying. When the second male ran, Morales and Cervantes shot him. Morales, Cervantes and Martinez returned to the Honda and told [the driver] nothing had happened. Morales also told Ojeda he thought the two males were the wrong guys. (People v. Cervantes, supra, 118 Cal.App.4th at p. 167.) The statement was admitted at trial under the declaration-against-interest hearsay exception. The trial court found that the statement had sufficient indicia of trustworthiness and reliability based on the totality of the circumstances. (Id. at p. 170.)

On appeal, Martinez and Cervantes argued that Moraless statement to Ojeda should not have been admitted at trial. They argued that the statements were not trustworthy because Morales tried to shift blame and attempted to place himself in a more sympathetic light. In addition, they argued that Ojedas testimony should have been limited to statements specifically disserving only to Morales, and the statement should have been redacted pursuant to Aranda/Bruton.

First, the appellate court found that the statement of Morales to Ojeda was not a testimonial statement and thus did not violate the rules established in Crawford. Next, the court applied Greenberger and found that the statement of Morales was admissible against Cervantes and Martinez. The court found Moraless statement to be trustworthy based on the following:

The evidence here showed Morales made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. Further, it is likely Morales wanted to have his wounds treated without going to the hospital. Regarding the content of the statement, Morales did attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez. Thus, Morales's statement specifically was disserving of his penal interest because it subjected him to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true.

We also disagree with appellants' assertion the statement attempts to place Morales in a sympathetic light by suggesting the shooting was a mistake or justified because the victims had weapons. The fact appellants shot innocent victims, rather than the gang members they sought, does not render them more sympathetic. In either case, appellants were lying in wait for the victims to arrive, ambushed them, ordered them to their knees, searched and pistol-whipped them, then shot them. Nothing about the shooting as recounted by Morales suggested he should be considered a sympathetic figure or that he acted in self-defense. (People v. Cervantes, supra, 118 Cal.App.4th at p. 175.) Even though Morales said that Cervantes shot the first male it was incriminating to Morales because Morales was acting in concert with Cervantes. (Id. at p. 176.)

The appellate court in Cervantes agreed with Greenberger that Bruton did not require Moraless statement to be redacted to exclude all reference to the nondeclarants as long as the statement was disserving to the interests of the declarant (Morales). (People v. Cervantes, supra, 118 Cal.App.4th at pp. 176-177.) In continuing its agreement with Greenberger, the appellate court found that the declaration against interest may be admitted in a joint trial. (Id. at p. 177.)

We agree with the Greenberger/Fuentes/Cervantes line of cases. We must now determine if Garcias statement to Torres was properly admitted as a declaration against interest. There is some disagreement as to whether the appropriate standard of review for this question is abuse of discretion or de novo review. (People v. Cervantes, supra, 118 Cal.App.4th at pp. 174-175.) Because the result would be the same utilizing either standard, we need not resolve this question at this time.

Evidence Code section 1230 provides: Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Although Santana attacks the credibility of Torres in his discussion of this issue, the credibility of the in-court witness is not a proper ground for refusing to admit evidence offered under the hearsay exception for declarations against interest. (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarants penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarants relationship to the defendant. [Citation.] (Id. at p. 607.) The reason behind the creation of the declaration against penal interest exception is that a persons interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against interest. (People v. Spriggs (1964) 60 Cal.2d 868, 874.)

Here Garcia was clearly unavailable as a witness because he chose not to testify at his own trial. Mendoza does not dispute that Garcias statement was in general against his interest; he argues that certain portions of it were not specifically disserving to his (Garcias) penal interests and/or placed Garcia in a more sympathetic light and should have been excluded. In particular, Mendoza points to Garcias statements that Mendoza thought up the plan and recruited others, Mendoza was in charge and told Garcia what to do, Mendoza was the one with the problem with the victim, and Mendoza fired first as portions that should not have been admitted. Mendoza argues that Greenberger is no longer good law to the extent it found admissible those portions of a declaration against interest that tended to shift blame to others or put the declarant in a more sympathetic light.

While we have found that Greenberger is still valid law, we do agree with Mendoza to the limited extent any of Garcias statements were not particularly disserving to Garcia; that portion would not be properly admitted as a declaration against interest. In Williamson v. United States (1994) 512 U.S. 594, the court considered the federal equivalent of the hearsay exception for declarations against penal interest. The Williamson court acknowledged that the rule does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. (Id. at pp. 600-601.) But a statement containing activities of other identified perpetrators may be found to be inculpatory to the declarant. Even statements that are on their face neutral may actually be against the declarants interest. I hid the gun in Joes apartment may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. Sam and I went to Joes house might be against the declarants interest if a reasonable person in the declarants shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sams conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarants interest. (Id. at p. 603.)

With the exception of Garcias statement to Torres that Santana was afraid and the other perpetrators let Santana out of the car after the killing, we find that Garcias entire statement to Torres was particularly disserving to Garcias penal interest, including those portions that implicated Mendoza and Santana.

Garcia admitted to Torres that he participated with others in the initial kidnapping of the victim, the captivity and beating of the victim at Rufers home, and the killing of the victim. Garcia admitted that he shot at the victim and was armed throughout the encounter. Garcia set forth the locations of the activities. Garcia told Torres that they used Mendozas car and that the series of criminal activities were carried out by him in the company of Mendoza, Santana, and Pelon. Although Garcia portrayed Mendoza as the person somewhat in charge of the initiation of the incidents, Garcia placed himself in the thick of all crimes as an active participant and did not minimize his role in the activities such that his statements were not particularly disserving to him. Nothing about these incidents as recounted by Garcia suggested that he should be considered a sympathetic figure. Furthermore, by naming his associates, Garcia implicated himself even further. Because the activities were witnessed by many others (at the original kidnapping sight and at Rufers home), by naming his coparticipants who might be identified by witnesses, Garcia was linking himself directly to the others. In addition, by specifying that they rode in Mendozas car, Garcia tied himself to the vehicle that transported the bloodied victim and was seen by others. Again, this was clearly disserving to Garcias penal interest.

We find that Garcias declaration, including those portions implicating Mendoza and Santana, was against Garcias penal interest. When the trial court ruled on the admissibility of Torress testimony, it had before it a transcript of Torress interview with the prosecutor and also reviewed Torress preliminary hearing testimony. We do not find anything in the record demonstrating that these transcripts were admitted into evidence. Furthermore, several of the particular statements of Garcia now complained of (Garcia said that Mendoza thought up the plan and recruited others, Mendoza was in charge and told Garcia what to do, Mendoza was the one who had a problem with the victim) were not testified to at trial by Torres and were not before the jury. Thus, even if the trial court may have erred in not redacting portions of the statements implicating Mendoza, those portions of the statements were never in evidence before the jury and could not have harmed Mendoza or Santana.

The testimony that Santana was afraid and got out of the vehicle was elicited from Torres by Santanas attorney on cross-examination. He cannot complain of it now. In any event, other evidence had already implicated Santana as present at the three separate crime scenes; evidence that he got out of the vehicle and was afraid could only inure to his benefit.

As the final test to admissibility we must consider whether Garcias statement to Torres was sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte(2000) 24 Cal.4th 603, 611.) As previously set forth, in making this determination we must consider the words uttered, the circumstances under which the declaration was made, the declarants possible motivation, and the declarants relationship to the defendant.

Garcias statement was made to Torres, a friend he had known for over 10 years and someone he frequently talked to, in a noncoercive atmosphere. Garcia summoned Torres to his room and wanted to talk. His statement to Torres was spontaneous. Contrary to Mendozas assertion, we see nothing in the statement of Garcia that attempts to shift blame or curry favor. His statement implicated himself as a major participant in a series of very serious crimes. The statement was made shortly after the crimes occurred and before anyone had been arrested or suspected. We believe that there were sufficient indicia of reliability such that the statement was sufficiently reliable to warrant its admission.

II. Testimonial Character of Garcias Statement

On cross-examination, Torres disclosed more details about his deals with the prosecution. He was arrested on May 25, 2001, with a pound of methamphetamine. He reached a plea agreement in April of 2002. He pled guilty to possession of methamphetamine with the agreement that he would receive no more than 16 months in prison. Between the time of his plea and before sentencing, Torres was cooperating with law enforcement to bring them information in the hopes that his sentence would be less than 16 months. His sentencing hearing was continued on a monthly basis. Torres kept asking for more time to gather information. He had not found any information to pass on to law enforcement by October of 2002.

The People had not previously disclosed that Torres was cooperating with law enforcement to collect criminal information in the hope that he would receive a reduced sentence. The court granted the request by defendants to instruct the jury about the Peoples failure to disclose this information.

Mendoza and Santana filed motions for new trial, claiming that Garcias statement to Torres was a testimonial statement because Torres was working for law enforcement at the time the statement was gathered and thus the evidence was inadmissible under the recent United States Supreme Court case of Crawford v. Washington, supra, 541 U.S. 36. The trial court agreed that there was not complete disclosure as to what the role of Torres was during the time he made contact with Garcia, but the court did not see a connection so close between Torres and law enforcement as to suggest that Torres went at the direction or guidance of law enforcement to speak to Garcia. The court found that the new disclosures regarding the relationship between Torres and law enforcement did not change the courts view with regard to the applicability of Crawford. The court denied the motion for new trial.

Prior to Crawford, out-of- court statements of an unavailable witness could be admitted at trial if they bore adequate indicia of reliability. Crawford abandoned this approach to such statements,however, and held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.)

Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial. [T]he court reasoned [that] the clause's express reference to witnesses reflects its focus on those who bear testimony, which is [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. (Crawford, supra, 541 U.S. 36, 51, quoting Webster, An American Dict. of the English Language (1828).) An accuser who makes a formal statement to government officers, said the court, bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (541 U.S. at p. 51.) Thus, the court explained, the constitutional text reflects an especially acute concern with a specific type of out-of-court statement. (Ibid.) (People v. Cage (2007) 40 Cal.4th 965, 977-978.) (People v. Geier (2007) 41 Cal.4th 555, 597.)

Santana claims that Garcias statement to Torres was testimonial and it should not have been admitted pursuant to Crawford. Thus, the trial court erred in admitting the statement and in denying the motion for new trial.^[5] In particular Santana argues that the statement of Garcia was clearly testimonial because it would certainly be anticipated that his statement would be available for use in a prosecution.

Mendoza argues that the evidence established that Torres was acting as an agent of the police at the time Garcia confessed to him; thus the trial court erred under Crawford when it admitted this testimony. Mendoza contends Torres, acting as a government agent, elicited the statement for the purpose of prosecution. Relying on this courts opinion in People v. Sisavath (2004) 118 Cal.App.4th 1396, Mendoza asserts that it is not necessary that the interrogator be a law enforcement officer so long as the police have some involvement for the purpose of prosecution and the government may not insulate itself from the restrictions imposed by the Constitution by using the stratagem of directing a civilian to engage in the prohibited conduct.^[6]

In People v. Sisavath, supra, 118 Cal.App.4th 1396, Victim 2 told her mother that defendant had touched her private parts. The mother questioned Victim 1 and she made similar statements. The mother called police and defendant was arrested. Defendant was charged with numerous sex crimes against Victim 1 and Victim 2. At trial it was determined that Victim 2 was not competent to testify. The People sought to admit two of Victim 2s out-of-court statements. The first was a statement by Victim 2 to the officer who responded to the mothers call to the police. The second was a videotaped interview with a trained interviewer at a Multidisciplinary Interview Center (MDIC). The court admitted this evidence. (Id. at pp. 1398-1400.)

Defendant